Dependency and the Liberal Polity: on Martha Fineman's The Autonomy Myth By Maxine Eichnert In the last few years, a number of authors have published books dis- cussing the heavy burdens that parents, especially mothers, bear in our so- ciety as a result of their caretaking obligations.' These works are only the most recent additions to the literature on an issue with which feminists and cultural critics have grappled for more than a generation.' Much of this literature engages the profound gender inequality that women experience as a result of rearing children.3 To this array, Martha Fineman adds yet an- other work.4 Copyright © 2005 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Associate Professor of Law, University of North Carolina School of Law; B.A., Yale College, 1984; J.D., Yale Law School, 1988. A number of people have given me insightful comments on earlier drafts of this essay, including Scott Baker, Kate Bartlett, Jennifer Collins, John Conley, Clare Huntington, Linda McClain, Mike Okun, Elizabeth Scott, Mary Shanley, and all those present at UNC's faculty workshop. Kathryn Abrams, Michael Corrado, Marion Crain, Adrienne Davis, Thomas Spragens and Mark Weisburd, out of the goodness of their hearts, read drafts not once but twice. Eric Stein, as usual, was an unceasingly patient editor. 1. E.g., ANNE ALSTOTT, No EXIT: WHAT PARENTS OWE THEIR CHILDREN AND WHAT SOCIETY OWES PARENTS (2004); THE BITCH IN THE HOUSE: 26 WOMEN TELL THE TRUTH ABOUT SEX, SOLITUDE, WORK, MOTHERHOOD, AND MARRIAGE (Cathi Hanauer ed., 2003); MONA CARRINGTON, CARE AND EQUALITY (1999); ANN CRITTENDEN, THE PRICE OF MOTHERHOOD: WHY THE MOST IMPORTANT JOB IN THE WORLD IS STILL THE LEAST VALUED (2001); NANCY FOLBRE, THE INVISIBLE HEART: ECONOMICS AND FAMILY VALUES (2001); JANET GORNICK & MARCIA MEYERS, FAMILIES THAT WORK: POLICIES FOR RECONCILING PARENTHOOD AND EMPLOYMENT (2003); JERRY JACOBS & KATHLEEN GERSON, THE TIME DIVIDE: WORK, FAMILY, AND GENDER INEQUALITY (20O4); JUDITH WARNER, PERFECT MADNESS: MOTHERHOOD IN THE AGE OF ANXIETY (2005); JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000). 2. See, e.g., ARLIE HOCHSCHILD, THE SECOND SHIFr (1989); SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY (1989); ARLENE SKOLNICK, EMBATTLED PARADISE (1991); JOAN C. TRONTO, MORAL BOUNDARIES (1993); Mary Joe Frug, Securing Job Equality for Women: Labor Market Hostility to Working Mothers, 59 B.U. L. REV. 55 (1979); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983); Joan Williams, Deconstructing Gender, 87 MICH. L. REv. 797 (1989); Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REv. 1559 (1991). 3. Childrearing impacts women more profoundly than men because women assume the bulk of the caretaking burden in our society. Women without children today earn roughly the same amount as men. See CRITTENDEN, supra note 1, at 87 (calculating that a childless woman earns roughly ninety- eight cents to a man's dollar). Raising children causes a precipitous drop in mothers' income, however. 1285 1286 CALIFORNIA LA W REVIEW [Vol. 93:1285 It is a work, however, that turns the previous conversation on its head. In The Autonomy Myth,' Fineman upends many of the assumptions in the existing debate over what to do about work-family issues and the sex ine- quality that attends them. Indeed, it is somewhat misleading to include this book in the work-and-family genre, given that its grand scope sweeps across a far broader terrain. In it, Fineman argues that political rhetoric and popular ideology in the United States have become so fixated on the myth that citizens should be autonomous that they fail to recognize the inevita- bility and normality of dependency. In contrast to the prevailing autonomy myth, Fineman contends that because dependency is an unavoidable fea- ture of any society, the state has a responsibility to meet dependency needs and to support caretaking. Fineman argues that the United States has failed woefully in this task. She points out the ways in which means-tested welfare programs, tax pol- icy, labor market policy, and a range of other government programs either ignore dependency or stigmatize it when it appears outside of the domestic realm. She also criticizes recent proposals to shore up and subsidize the marital family as against other family forms, contending that such propos- als misguidedly attempt to cabin dependency issues within families. In do- ing so, Fineman charges that such proposals merely repeat the autonomy myth at the level of the family, awarding state preferences to the marital family based on the mistaken notion that it is and should be self- supporting. Along the way, Fineman develops powerful arguments con- cerning the role of the state that have implications for legal and public pol- icy discussions well beyond the work-and-family arena. In this essay, I discuss the contributions that The Autonomy Myth makes to literature on work-and-family issues and assess Fineman's nor- mative proposals. I argue that Fineman convincingly makes the case that When working mothers are factored into the equation, the average earnings of all women workers, including those who work part-time, is only 59% of men's earnings. Id at 93. Taking into account only women who work full-time, whether childless or with children, women earn an average of seventy- seven cents for every dollar men earn. Id. 4. Fineman, the Robert W. Woodruff Professor at Emory Law School, has already written prolifically about carework issues. See, e.g., THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); Dependencies, in WOMEN AND WELFARE: THEORY AND PRACTICE IN THE UNITED STATES AND EUROPE 23 (Nancy J. Hirschmann & Ulrike Liebert eds., 2001); Contract and Care, 76 CHI.-KENT L. REV. 1403 (2001); Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. GENDER SOC. POL'Y & L. 13 (2000); The Family in Civil Society, 75 CHI.-KENT L. REV. 531 (2000); The Inevitability of Dependency and the Politics of Subsidy, 9 STAN. L. & POL'Y REV. 89 (1998); The Nature of Dependencies and Welfare 'Reform,' 36 SANTA CLARA L. REV. 287 (1996); Masking Dependency: The Political Role of FamilyRhetoric, 81 VA. L. REV. 2181 (1995); Our Sacred Institution: The Ideal of the Family in American Law and Society, 1993 UTAH L. REV. 387 (1993); The Neutered Mother, 46 U. MIAMI L. REV. 653 (1992). 5. MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY (2004). 2005] DEPENDENCYAND THE LIBERAL POLITY 1287 U.S. public philosophy obsessively focuses on autonomy as a public ideal. Furthermore, she proves her point that dependency is an inevitable human condition for which a good and just polity must assume responsibility. However, there are multiple ways in which the state's responsibility for dependency in a liberal polity can be conceptualized and fulfilled. 6 In my view, while Fineman persuasively identifies the problem of the autonomy myth, her reconceptualization of the state's responsibility for dependency and her policy proposals concerning how the state should deal with this dependency require both refinement and revision. Ultimately, I assert that the state should support carework in a manner that would allow citizens to combine caretaking responsibilities with work in the labor market, rather than directly subsidize such carework in private homes. I also contend that the state's responsibility to support caretaking, which Fineman frames in terms of a debt that society owes to caregivers, is better conceptualized as a societal obligation to protect its most vulnerable citizens, as well as to de- velop their capabilities. My discussion of The Autonomy Myth is organized in three parts. In Part I, I review Fineman's book and its contribution to the work-and- family discussion and related debates. In Part II, I evaluate how Fineman's proposal to shift responsibility for carework among societal institutions compares to other feminist proposals for dealing with the carework issue. In doing so, I seek to reconcile Fineman's position with that of feminists who argue for redistributing carework between the sexes, as well as femi- nists who caution that state support for carework may solidify the habitual association of woman with motherhood to the detriment of gender equal- ity.7 In Part III, I consider how a liberal democratic polity should 6. I use the term "liberal" throughout this article to refer to the Anglo-American line of political thought that premises the legitimacy of government on the fundamental equality of all citizens, the importance of limits on government, and the significant emphasis on respect for individual rights. While the version of liberal theory that dominated at the end of the twentieth century presented liberalism as a philosophy that embodied no particular theory of the good life, mandated the state's neutrality, and limited the state's role to the protection of individual rights, liberty, and justice, see JOHN RAWLS, A THEORY OF JUSTICE (1971), recent scholars argue that the liberal polity should be conceived, in Stephen Macedo's words, "as a construction for discernible collective ends and purposes, including [but not limited to] the preservation of a broad swath of liberty." STEPHEN MACEDO, DIVERSITY AND DISTRUST 5 (2000); see also WILLIAM GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE (1991); THOMAS A. SPRAGENS, JR., CIVIC LIBERALISM: REFLECTIONS ON OUR DEMOCRATIC IDEALS (1999). This essay is premised on this revisionist view. Specifically, it is grounded on the belief that a vigorous liberal polity must fulfill a number of responsibilities and pursue a number of social goods-including human dignity, substantive equality, civic harmony, and human development-that have too often been read out of standard liberal accounts.